School Ban on ‘Boobies’ Bracelets Unconstitutional

A divided 3rd U.S. Circuit Court of Appeals on Aug. 5 ruled in favor of two middle school students who wore “I [HEART] Boobies” bracelets to school in support of breast cancer awareness. The court said the school district violated their free speech rights by banning the bracelets and suspending the girls.

Students Stand Up for Rights

Kayla Martinez and Brianna Hawk, seventh and eighth graders, respectively, at Easton Area Middle School in 2010, bought the rubber bracelets from the Keep a Breast Foundation with their mothers, in order to commemorate family members and friends they’d lost to breast cancer, according to the opinion.

After a few weeks of teachers noticing female students wearing the bracelets, according to the opinion, the school decided to prohibit bracelets containing the word “boobies,” although it encouraged students to wear other items in honor of Breast Cancer Awareness Month, such as the traditional pink ribbons.

Martinez and Hawk were ordered to remove their bracelets on the school’s Breast Cancer Awareness Day. They refused and were suspended. The entire school district then banned the bracelets.

The American Civil Liberties Union of Pennsylvania sued the school district in November 2010 on behalf of Martinez and Hawk. In April 2011, a federal judge enjoined the school from enforcing the ban, according to the ACLU, and the full 3rd Circuit agreed to hear the case – a move that signals an important case.

New Test for Student Speech

Under existing constitutional law rulings by the U.S. Supreme Court, schools can restrict student speech when it’s lewd and when it can be reasonably expected to disrupt the school.

The court announced a new three-part test that combines those two standards and focuses on whether the speech comments on important issues:

if the speech is “plainly lewd,” it can be prohibited regardless of whether it comments on a political or social issue

if the speech could be reasonably interpreted as lewd, it can be restricted as long as it can’t be interpreted as commenting on a political or social issue

if the speech is not plainly lewd and does comment on a political or social issue, it cannot be categorically restricted

“Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned . . . ,” held the court. The school district also failed to show that the bracelets threatened to substantially disrupt the school, which had been its reason for banning them.

“I think the framework that the Third Circuit articulated makes a lot of sense,” observes Emily Gold Waldman, a professor at Pace Law School, in a blog post. “That said, there are some pretty obvious controversies coming down the pike.” Middle school students are likely to push this envelope.

“The majority went out of its way to hold that ‘I [heart] Tits’ could still be restricted as plainly lewd, but expressly declined to reach the ‘I [heart] Balls’ slogan that is already being used by the Testicular Cancer Awareness Project, which is selling ‘feelmyballs’ bracelets.”

Breasts Not ‘Inherently Sexual’

The case is important for three reasons, says Mary Catherine Roper, a senior staff attorney at the ACLU of Pennsylvania who argued the case to the 3rd Circuit.

Mary Catherine Roper

First, “it recognizes that school students, like adults, sometimes speak about important social and political issues and that when they do, we want to make sure they aren’t censored because of a school administrator’s fear of controversy or discomfort with certain topics,” she says.

Second, “it rejected the School District’s argument that women’s breasts are ‘inherently sexual’ and discussion of them is lewd,” Roper says. “These girls wanted to talk about breast health – which is something you can only do if you can talk about breasts. It is a terribly damaging thing to tell teens that it is shameful or improper to talk about their own bodies.”

“And, finally, the majority decision here has strongly affirmed that First Amendment rights are not subject to school officials’ ‘discretion,’” she says. “We don’t think you can properly educate children to be engaged citizens without helping them learn to talk about important and contentious issues.”

Appeal Possible?

John E. Freund III

A lawyer for the school district says the decision will make it hard for school officials to “make good faith decisions” about what students can appropriately wear to school.

“[T]he 3rd Circuit’s decision is all but a complete rejection of community standards of decency in favor of national standards, such as the infamous ‘Seven Dirty Words’ identified by the FCC in the 1970s,” says John E. Freund III of King Spry Herman Freund & Faul LLC in Bethlehem, Penn.

Freund would not comment on whether the school district will appeal to the U.S. Supreme Court.

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